State of Missouri Laclede Gaslight Co v. Murphy

• Citation: 170 U.S. 78,18 S.Ct. 505,42 L.Ed. 955
• Decision Date: 11 April 1898
• Docket Number: No. 47,47
• Parties: STATE OF MISSOURI ex rel. LACLEDE GASLIGHT CO. v. MURPHY, Street Com'r, et al
• Court: United States Supreme Court

170 U.S. 78

18 S.Ct. 505

42 L.Ed. 955

STATE OF MISSOURI ex rel. LACLEDE GASLIGHT CO.

v MURPHY, Street Com'r, et al.

No. 47.

April 11, 1898.

The Laclede Gaslight Company filed its petition for mandamus in the name of the state of Missouri, on its relation against Michael J. Murphy, street commissioner of the city of St. Louis and another, on November 26, 1894, in the supreme court of that state.

This petition stated that the relator was incorporated by an act of the general assembly of Missouri approved March 2, 1857, which was amended by an act approved March 3, 1857, and by an act approved March 26, 1868, and set forth the three acts in extenso.

The fifth section of the act of March 2, 1857, read as follows:

'Sec. 5. The said company, its successors and assigns, shall, within all that portion of the present corporate limits of the city of St. Louis, in St. Louis county, not embraced within the corporate limits of said city, as established by the act entitled 'An act to incorporate the city of St. Louis,' approved February 8, 1839, have and enjoy, during the continuance of this act, the sole and exclusive privilege and right f lighting the same, and of making and vending gas, gas-lights, gas-fixtures, and of any substance or materal that may be now or hereafter used as a substitute therefor; and to that end, may establish and lay down, in said portion of said corporate limts, all pipes, fixtures, or other thing properly required, in order to do the same (the same to be done with as much dispatch and as little inconvenience to the public as possible), and shall also have all other powers necessary to execute and carry out the privileges and powers hereby granted to said company.'

The words 'sole and exclusive,' in the fifth section, were stricken out by the act of March 3, 1857. Laws Mo. 1856-57, pp. 598, 599.

Section 1 of the act of March 26, 1868, amending the act of March 2, 1857, was as follows:

'Section 1. The said Laclede Gaslight Company shall and may, within the corporate limits of the city of St. Louis, as the same are now or may hereafter be established, exercise, have, hold, and enjoy forever all the rights, privileges, and franchises granted to it by the fifth section of the act to which this act is amendatory, and may, at any time, lease, sell, or dispose of any portion of said rights, privileges, and franchises to individuals, associations, or corporations intending or desiring to exercise the same within any portion of the limits aforesaid.' Laws Mo. 1868, p. 187.

The petition then averred that the act of March 2, 1857, as amended by the subsequent acts, constituted relator's charter, by which relator was granted the privilege and right of lighting the city of St. Louis as in the acts set forth, 'and to that end may establish and lay down in any portion of said corporate limits all pipes, fixtures, or other thing properly required in order to do the same, with this limitation only, that in laying donw pipes, fixtures, or other thing properly required therefor relator shall do the same with as much dispatch and as little inconvenience to the public as possible.'

It was further stated that by a certain agreement, executed February 28, 1873, relator had 'abandoned and surrendered any and all exclusive rights, and all claims or pretenses of claims of sole or exclusive privilege or right, of lighting any part of the city of St. Louis with gas, or making or vending gas, gas lights, or gas fixtures, and also all exclusive right whatsoever under its said charter.'

The petition went on to say that, in pursuance of its charter, relator had been for a long time engaged in the lighting business, both by gas and electricity; that, under a contract with the city, it was lighting a part of the public streets and alleys by electricity, and would be obliged to do so for some years to come; that it was furnishing light, by means of gas or electricity, to a large part of the inhabitants of the city; that, in order to fulfill its obligations to the city and the public, the company had erected and was maintaining 'extensive and costly plants for the manufacture and distribution of gas, as well as for generating and distributing electric currents'; that for distributing gas it had constructed a system of pipes laid under ground, without objection; that for the distribution of electricity it had 'hitherto used overhead wire strung upon poles along the streets and alleys of said city,' which poles and electric wires had been and are maintained and used by relator, without objection by said city or the authorities thereof, for the distribution of electricity, as well to furnish light to private consumers as for the fulfillment by relator of its said contract with said city of St. Louis for the lighting by electricity of certain public streets and alleys thereof; that to effect such distribution it is necessary to transmit through and by means of said wires electric currents of great power, which, if and when accidentally diverted, are dangerous to human life and property; that in order to avoid the inconvenience and danger to the public necessarily incident to that method of distributing electric currents, and in order o provide more effective and proper service, relator has made arrangements to lay its wires underground along and under the streets of said city according to approved and practicable plans, and is now ready to do so with as much dispatch, and as little inconvenience to the public, as possible.

It was then stated that Murphy was street commissioner, to whom was committed, under the city charter, 'the supervision and control of the streets and alleys of said city, and the denforcement of city ordinances relating thereto.' And relator averred that, having completed its preparation to carry out the work above indicated, and having given notice to the street commissioner of its intention to do so, the company proceeded on the 30th day of October, 1894, to begin the work of excavating at a point on the east side of Broadway street, in St. Louis, near the corner of Mound street (that point being adjacent to its generating plants), which work was proper and necessary for placing wires under ground, when the street commissioner caused the work to be stopped, and notified relator 'that he would not allow any part of any street of said city to be excavated for any purpose whatever without a permit previously obtained from him for that purpose, as provided by ordinance; and relator states that by section 568, art. 1, c. 15, of the Revised Ordinances of 1887 of said city of St. Louis, it is provided that 'no person shall make or cause to be made any excavation on any public street, highway, or alley without written permission of the street commissioner so to do, excepting public work under the authority of the water or sewer commissioner, who at the time of ordering any such excavating shall notify the street commissioner of the same."

That upon being so notified the company applied to the street commissioner for a permit to make the necessary excavation on Broadway, so that it might place its wires under the street for the purposes indicated. That the officer refused to give the permit asked, whereby, it was alleged, the company, in the exercise of its vested rights, was prevented from laying down in the streets of the city the pipes and fixtures required in the conduct of its business.

That it was the duty of the street commissioner to grant the permit; and, being without other remedy, relator prayed a mandamus against that officer, commanding him to issue a permit to the company to make an excavation along the east side of Broadway street, as near the curb as practicable, and extending from the southeast corner of Mound street to the southeast corner of Olive street and Broadway, in so far as was necessary for the laying of the company's electric wires underground; 'the same to be done with as much dispatch, and as little inconvenience to the public, as possible.'

An alternative writ of mandamus having been issued, the street commissioner filed his return thereto, alleging therein that the act of March 26, 1868, was in conflict with paragraph 2 of section 1 of article 8 of the constitution of Missouri of 1865, because the company did not, within one year from the time the act of March 2, 1857 took effect, organize or commence the transaction of its business, and not until 1873, and that said act was in conflict with section 25. art. 4. of the constitution of Missouri, because it did not set forth the act or part of act amended at length, as if it were an original act or provision.

That relator had never by any act been granted the franchise to make and vend electricity for any purpose whatever, and that lighting by electricity was wholly unknown March 2, 1857, and March 26, 1868.

'That the relator has heretofore placed its pipes and fixtures beneath the surface of the street on the east side of Broadway, from Mound street to Olive street, and at divers and sundry other places beneath the surface of the streets of the city of St. Louis, for the purpose of transmitting and vending and supplying gas to consumers in the city of St. Louis. That, in order to convey electricity, it is necessary to carry h e same by means of wires strung on poles above the surface of the streets, or by means of wires strung in nonconductive tubes or conduits beneath the surface of the streets, and that relator has never acquired from the state of Missouri or the city of St. Louis any right to place such wires above or beneath the streets of said city.

'That it is provided by section 2721, are. 5, c. 42, Rev. St. 1889, that no company shall place its wires and other fixtures underground in any city unless it shall first obtain consent from said city, through the municipal authorities thereof.

'And that it is provided by article 2, c. 15, Rev. Ord. St. Louis 1887, as the same has been amended by Ordinance No. 16,894...